WHEN CRIME PUNISHES ITSELF: DISPENSING WITH PUNISHMENT, PUNISHMENT THEORY, AND THEODICY–A GERMAN PERSPECTIVE
[☛ read the rest of the Symposium on Leo Zaibert, Rethinking Punishment (2018)]
PD Dr. Sascha Ziemann*
In his new book, Rethinking Punishment (2018), Leo Zaibert argues that the age-old debate over the justification of punishment has become deadlocked and must be stimulated through theoretical examination. Drawing a new map to the debate between retributivism and consequentialism, Zaibert is focusing on the axiological question of the value of punishment, arguing that this question implies an inescapable moral conflict of not one but two values (the monistic and pluralistic approaches, respectively). Taking this pluralism seriously, Zaibert then champions the idea of a “pluralistic axiology” of punishment “that admits that there is value in both justice (in the form of deserved punishment) and forgiveness, understood as very specific form of suffering diminution.” For Zaibert, there are “many reasons” why “refraining from punishing a deserving wrongdoer is more valuable than punishing him.” According to Zaibert, this conflict poses an intrinsic moral dilemma between deserved punishment and its merciful remission, and involves not only moral taint to the person deciding but also gives rise to the theodicean question: how punishment itself, understood as deliberate suffering, can be justified.
Zaibert’s book raises many fundamental questions. This paper focuses on one specific feature of Zaibert’s theory—the relationship between punishing and refraining from punishing—and discusses it from a German perspective. In particular, I want to examine one specific rule of German criminal law—§ 60 of the German Criminal Code (Strafgesetzbuch)—which allows for a complete abstention from punishment when the wrongdoer has been seriously affected by his own wrongdoing, and as a result juridical punishment has lost its function. Most interestingly, this regulation not only is subject to punishment theory and justification of punishment, but is also closely connected to the classic question of theodicy.
This short paper is organized as follows. The first part introduces the concept and functions of § 60. The second part explores the arguments for having a complete abstention from punishment under this provision. The third part discusses whether it may be justifiable under the regime of traditional punishment theory, and if not, why. Finally, the fourth part briefly looks at § 60’s connection to the theodicy problem.
B. Conviction without Punishment: The Concept and Functions of § 60 of the German Criminal Code
Section 60 of the German Criminal Code (“Absehen von Strafe”) provides:
The court shall dispense with punishment when the consequences of the act which have befallen the perpetrator are so serious that the imposition of punishment would be obviously inappropriate. This shall not apply when the perpetrator has incurred imprisonment of more than one year for the act.
The provision was inserted in the German Criminal Code in 1969. It consists of three parts:
(i) the wrongdoer suffered “serious consequences” of his wrongdoing (den Täter schwer treffende Folgen der Tat),
(ii) the imposition of punishment would be “obviously inappropriate” (offensichtliches Verfehltsein einer Strafe), and
(iii) the wrongdoer has not incurred more than one year of imprisonment.
Section 60 of the German Criminal Code mandates an absolute abstention from punishment. In the criminal law context, this means that the wrongdoer is found guilty, but will not be punished. In the literature, this legal consequence is sometimes characterized as “punishment zero.” Note that this rule has to be distinguished both from a stay of proceedings by the court and acts of mercy.
In judicial practice, the abstention from punishment mandated by § 60 is seldom granted, for it is only applicable to judicial sentences of less than one year’s imprisonment and is granted only in exceptional cases. In 2016, § 60 was invoked in 226 cases. Many of these cases involved tragic circumstances, e.g., when the wrongdoers themselves suffered severe consequences or lost their marriage partner or children as a result of their wrongdoing.
C. Punishment Zero: Section 60 of the German Criminal Code in the Context of Punishment Theory
Why should abstention from punishment be mandated in certain cases? What is the legal rationale behind “punishment zero” according to § 60 of the German Criminal Code? There are two main arguments.
One argument refers to the fact that in some cases punishment is unnecessary. According to the Federal Supreme Court, punishment would become “pointless” with respect to any penal purpose if the wrongdoer has suffered serious consequences of his wrongdoing. For Albin Eser, § 60 thus contains a “microcosm of all purposes of punishment.” (“Mikrokosmos aller Strafzwecke,”) In the literature, this combination of different punishment goals with equal importance has been given the name “cumulative theory of punishment goals” (“kumulative Strafzweckerfüllungskonzeption”). Although this question has to be decided with respect to all possible purposes of punishment equally, emphasis is often placed on two purposes of punishment in particular: (i) the effects upon the wrongdoing individual, or specific prevention, and (ii) the effects upon the members of society—general prevention. While specific prevention is concerned with the question as to how punishment is implemented in each individual case, general prevention is concerned with the threat of punishment and the functioning of the criminal justice system.
Usually, these two purposes of punishment are combined. The Federal Supreme Court accordingly says that punishment can be dispensed on the ground of self-inflicted suffering insofar as there is no need for further educational effects on the wrongdoer, and that the abstention from punishment could be seen as a reasonable “manifestation of a humane criminal justice” (“Ausdruck humaner Strafrechtspflege”) without challenging the “essential and valuable protective function” of the criminal law (“notwendige[r] und sinnvolle[r] Rechtsgüterschutz”) with respect to the members of society in general. Additionally, the unavailability of § 60 in cases of imprisonment over one year is commonly seen as an exclusion on the grounds of general prevention.
Another argument refers to the fact that the wrongdoer has suffered serious consequences of his wrongdoing on his own and accordingly has incurred extralegal suffering. Most commonly this argument of extralegal suffering is connected with the classic concept of poena naturalis, or “natural punishment.”
The term poena naturalis is most famously associated with German philosopher Immanuel Kant. In The Metaphysics of Morals, Kant says that “Judicial or Juridical Punishment (poena forensis) is to be distinguished from Natural Punishment (poena naturalis), in which Crime as Vice punishes itself, and does not as such come within the cognizance of the Legislator.” For the English-speaking world, philosopher Thomas Hobbes has distinguished “punishment in respect of men,” inflicted by “the authority of man,” and “punishment divine,” inflicted by “God, who is the author of nature,” for example: “when a man in assaulting another is himself slain or wounded; or when he falleth into sickness by the doing of some unlawful act.”
Although a number of arguments have been advanced to defend § 60, the deeper theoretical foundation of “punishment zero” is still uncertain and subject of debate among criminal law scholars. Grave objections are raised against the poena naturalis argument. For example, Bassakou argues that this argument implies an “archaic version of retributive punishment.” On the other hand, Mosbacher and Claus qualify poena naturalis as “long-established legal thought” (“althergebrachte[r] Rechtsgedank[e]”).
Furthermore, grave doubts exist among scholars as to whether § 60 can be justified with respect to punishment theory. Insofar as the provision is a combination of different punishment goals, it has been argued that this combination leads to a structure of “antinomy” or “dysfunctionality.” In fact, § 60 is subject to a fundamental conflict between different punishment goals. Even though the wrongdoer has suffered serious consequences resulting from his wrongdoing, this is not sufficient for abstaining from punishment on the grounds of specific prevention. The imposition of punishment also must be “obviously inappropriate” within the meaning of general prevention. Additionally, the law states that the mechanism of abstention is generally excluded insofar as it relates to sentences of more than one year’s imprisonment. This exclusion can also be justified on grounds of general prevention.
Another problem with poena naturalis arises with respect to extralegal suffering. It is completely uncertain how different punishment goals could be connected with extralegal suffering. For example, the theory must explain how extralegal suffering, which differs fundamentally from judicial punishment, could serve the purposes of retaliation or of prevention. Examining such penal effects of extralegal suffering and its relationship to traditional punishment theory would be very useful.
However, there are also promising prospects for a rethinking of abstention from punishment according to § 60. For example, both Bassakou and Hassemer emphasize the educational effects resulting from extralegal suffering. According to Winfried Hassemer, a future Criminal Code has to focus on the “individual psychological data” regarding the extent to which the wrongdoer can handle the suffering resulting from serious consequences “in light of socialization within the meaning of Criminal Law.” Hassemer’s idea was then advanced by his doctoral candidate Xanthi Bassakou on the basis of learning theory. For Bassakou, the abstention from punishment should depend on the “detectability of meaningful educational learning” with respect to specific prevention (“Feststellbarkeit eines spezialpräventiv bedeutsames Lerneffekts”).
D. Crime Punishes Itself: Section 60 of the German Criminal Code in Light of Theodicy
Finally, § 60 of the German Criminal Code may be able to give us a deeper understanding of punishment itself. According to legal theorist Klaus Günther, the theodicean idea of poena naturalis manifested in § 60 is implicitly connected with the justification of punishment in general. The argument goes as follows: If it is acknowledged that natural punishment could replace juridical punishment, we could say accordingly that juridical punishment could substitute natural punishment and is dependent on its absence. Following this argument, juridical punishment could be interpreted as an “act of theodicy in a secular post-metaphysical world.” And therefore, as Günther concludes, the need for punishment (“Strafbedürfnis”) would be “the last remnant of metaphysics we are carrying in the modern world.”
* Institute of Criminal Law and Philosophy of Law, Department of Law, Goethe-Universität Frankfurt, Germany.
 Leo Zaibert, Rethinking Punishment (2018), p. 12 ff, 15 ff.
 Id. at 19.
 Id. at 20.
 Federal Law Gazette (Bundesgesetzblatt), Part I (1969), p. 645, being then numbered § 16. For more on the legislative history of § 60, see Xanthi Bassakou, Beiträge zur Analyse und Reform des Absehens von Strafe nach § 60 StGB (1991), p. 1 seq.; Jutta Hubrach, in: Heinrich Wilhelm Laufhütte et al. (eds.), Strafgesetzbuch. Leipziger Kommentar, Großkommentar, 12th. ed. (2008), § 60 (Entstehungsgeschichte).
 “Strafmaß Null”: cf. Streng, Strafrechtliche Sanktionen. Die Strafzumessung und ihre Grundlagen, 3rd. ed. (2012), Para. 711) or “immaterialized punishment” (“vergeistigte Strafe”), cf. Manfred Maiwald, “Das Absehen von Strafe nach § 16 StGB,” in: 83 Zeitschrift für die gesamte Strafrechtswissenschaft (1971), p. 663, at 680.
 See § 153b German Code of Criminal Procedure (Strafprozessordnung).
 See Bassakou, supra, at 129 seq.
 See Statistisches Bundesamt, Fachserie 10, Reihe 3 (Rechtspflege/ Strafverfolgung), Tabelle 2.2. (2016).
 Cf. Federal Supreme Court (Bundesgerichtshof), in Neue Zeitschrift für Strafrecht (1997), p. 121 seq.; Higher Regional Court (Oberlandesgericht) Karlsruhe, in Neue Juristische Wochenschrift (1974), p. 1006 seq.; for an overview of the jurisprudence, see Sprotte, Die poena naturalis im Straf- und Strafzumessungsrecht (2013), p. 64 seq.).
 Fehlendes Strafbedürfnis, see Federal Supreme Court (Bundesgerichtshof), Neue Juristische Wochenschrift 49 (1996), p. 3350; Karl-Heinz Groß, in Münchener Kommentar zum Strafgesetzbuch, 3rd. ed. (2016), § 60 Rn. 4; Stree & Kinzig, in: Schönke/Schröder. Strafgesetzbuch, 29 ed. (2014), § 60 para 1.
 See Federal Supreme Court (Bundesgerichtshof), Neue Juristische Wochenschrift 49 (1996), p. 3350; Federal Supreme Court, in: 31 Neue Juristische Wochenschrift (1978), p. 768.
 Albin Eser, “Absehen von Strafe–Schuldspruch unter Strafverzicht,” in Friedrich-Christian Schroeder et al. (eds.), Festschrift für Reinhart Maurach zum 70. Geburtstag (1972), p. 257 seq., at 260.
 Sprotte, supra, at 88 seq.; similar Bassakou, supra, at 34: “Vollzweckerreichungskonzept.”
 Federal Supreme Court (Bundesgerichtshof), Neue Juristische Wochenschrift 49 (1996), p. 3350; Federal Supreme Court, in: 31 Neue Juristische Wochenschrift (1978), p. 768; Higher Regional Court (Oberlandesgericht) Karlsruhe, in Neue Juristische Wochenschrift (1974), p. 1006 seq.
 Winfried Hassemer, “Das ‘Absehen von Strafe’ als kriminalpolitisches Instrument,” in Rainer Hamm (ed.), Festschrift für Werner Sarstedt zum 70. Geburtstag (1981), p. 65, at 67 seq.
 Cf. Groß, supra, § 60 para. 4; Hans-Jörg Albrecht, in Urs Kindhäuser et al. (eds.), NomosKommentar Strafgesetzbuch, 5th ed. (2017), § 60 para. 1; Stree & Kinzig, supra, at para. 1; Hassemer, Festschrift, supra, at 67; Bassakou, supra, at 114 seq.; Sprotte, supra, at 41 seq.
 Kant, Metaphysik der Sitten (1797, as translated by William Hastie, Edinburgh (1887)).
 Thomas Hobbes, Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiastical and Civil (1651), Part 2, Ch. XXVIII: Of Punishments and Rewards.
 Bassakou, supra, at 112/113; see also Winfried Hassemer, Strafrechtsdogmatik und Kriminalpolitik, 1981, p. 119: “general need for retaliation” (“Vergeltungsbedürfnis der Allgemeinheit”).
 Andreas Mosbacher & Susanne Claus, in Helmut Satzger et al. (eds.), StGB. Strafgesetzbuch. Kommentar, 3rd. ed., 2016, § 60 Para. 1.
 Bassakou, supra, at 75 seq.
 Sprotte supra, at 90.
 Cf. Hassemer, Festschrift, supra, at 67.
 Cf. id. at 68.
 Cf. Sprotte, supra, at 86 seq.; Bassakou, supra, 101 seq.
 Cf. Hassemer, supra, Strafrechtsdogmatik, at 118 note 126; see also Hassemer, supra, Festschrift, at 67.
 Bassakou, supra, at 208.
 Cf. Klaus Günther, “Kritik der Strafe II,” in 2 WestEnd – Neue Zeitschrift für Sozialforschung (2005), p. 131 seq., at 140.